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Know Your Rights: FOIA

January 3, 2018 01:30

During Free Speech Week 2017, RTDNA co-hosted a Know Your Reporting Rights discussion addressing how the First Amendment applies to journalists. Here is part one of a new series expanding on the topics and tips in that discussion.

Freedom of information requests are an important tool for any reporter, not just for investigative teams. Requesting public documents is one of the best ways to keep government agencies accountable.

Submit FOIA requests regularly
Make regular requests of local and state agencies, not just when you’re working on a big story.
  • Making regular requests is good practice for navigating the system.
  • Consistently requesting records is a great way to spot problems or potential stories.
  • When a big story comes along, you’ll be one step ahead.
  • Requests related to a certain story, especially on deadline, should be as specific as possible, but regular requests can be broader, making it harder for agencies to avoid releasing information.
Know your state law
RTDNA is always fighting for more open records laws at the federal and state levels, but many state legislatures have still, for example, exempted themselves from open records laws. States also have varying – or nonexistent – guidelines on how long agencies have to respond to records requests. Know your state’s laws, track your requests and always follow up or have your lawyer do so if you do not receive an adequate response.

When requests are denied
In general, the public is entitled to access government agencies’ records, and the burden is on the government to prove why, via specific exceptions to open records laws, information is not being released. If your FOIA request is denied:
  • Confirm that the exception cited does apply.
  • Consider utilizing an appeals process.
  • Submit the request to a higher agency.
An often-cited exception to freedom of information is privacy, particularly in the cases of public schools. However, schools fall under the jurisdiction of supervising agencies, who may be more likely to release the requested information.

When FOIA fails to prevent government obstruction
Even if your newsroom has the FOIA request process down to a science, actually obtaining information via FOIA requests can still be a challenge. Governments are finding new ways to effectively deny requests. How?

Michigan Radio recently described the situation in Michigan:

Each state has its own FOIA laws, and Michigan’s is notably awful. And when it comes to complying with the spirit of FOIA, public entities in Michigan often use legal hair-splitting and eyebrow-raisingly high cost and time estimates to put up a high, thick wall between the public and public information.

While under Michigan law, agencies have five days, plus a ten-day extension, to grant or deny a FOIA request. However, there is effectively no deadline for actually fulfilling the request, that is, for producing the required documents.

Michigan Radio reporter Sarah Cwiek, for example, received a response to a FOIA request essentially saying, “We could dig it up for you…but that would take about three months, require copying two million documents, and cost $631,000.”

While press freedom groups like RTDNA are pressing for legislation improving FOIA laws, be persistent! Check if the information is available from a different source. Cwiek was able to uncover the documentation she’d requested from an annual report already available.
For more tips on more effective FOIA requests, like what to include on a request and some keyword requests you may not have thought of, download our Know Your Reporting Rights guide, and stay tuned next week for another important reporters’ rights topic: Privacy.


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